Confidentiality and Disclosure in Mediation: When the Chicken Won't Talk

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Abstract:

In the absence of statutory protection for confidentiality of mediation communications in Ontario, courts must rely on the common law to determine what should be protected and what may be divulged. This article discusses the scope and exceptions to confidentiality in mediation developed by Ontario's Divisional Court in Rudd v. Trossacs Investments Inc. (2006), 79 O.R. (3d) 687 (Div. Ct.). Recent cases where disclosure of communications made during mediation has been sought are considered.

Keywords: Ontario, Civil Procedure, Mandatory Mediation, Confidentiality, Litigation, Settlement, Privilege

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